Tiga Nalu v The Commissioner of Police and The State

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 12 November 1999
• Citation: (1999) N1927
• Court: National Court
• Year: 1999
• Judgement Number: N1927

National Court: Injia J

Judgment Delivered: 12 November 1999

N1927

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 156 OF 1998

BETWEEN:

TIGA NALU

-Plaintiff-

AND:

THE COMMISSIONER OF POLICE

-First Defendant-

AND:

THE STATE

-Second Defendant-

LAE : INJIA, J.

1999 : SEPTEMBER 9

NOVEMBER 12

Administrative Law - Judicial review - Disciplinary process - Dismissal
of policemen from Police Force - Nature of review - Procedure -
Pleadings - Grounds - Evidence - Police Force Act 1998, S.26; National Court
Rules Order 16.

No Cases are cited in the judgment.

B. Ovia for the Plaintiff

Mr Iwais for the Defendants

12 November 1999

INJIA, J.: This is an application for judicial review of the plaintiff’s dismissal from the police force, on disciplinary grounds by the 1st Respondent on 29/1/98. At the time of his dismissal, the plaintiff held the rank of Senior Constable. The Plaintiff seeks an order in the nature of certiorari quashing the said decision and an order in the nature of mandamus, either remitting the matter back to the Commissioner to be re-considered in accordance with law, or alternatively, an order reinstating the plaintiff to his substantive position with full salary and other entitlements back-dated to 29/1/98. Leave to seek review was granted on 4/9/99. The application is made under Order 16 of the National Court Rules.

The disciplinary procedures prescribed by the Police Force Act (Chapter 65) followed by the Commissioner in dismissing the plaintiff is not disputed. On 10/11/97, the plaintiff was charged that “on the 29th day of March 1997, at Lae Police Station, you were guilty of disgraceful conduct in your official capacity in that you did receive a property namely a piece of uncooked pig meat knowing that at the time of receiving it, it had been stolen or unlawfully obtained” thereby contravening Section 43(g) of the Police Force Act (Chapter 65). The charge paper was served on the plaintiff on 21/10/97. The plaintiff replied to the charge in writing on 4/11/97 together with a statement from policeman Anigura Amicks dated 21/10/97 and Policeman Frank Kwarkuto dated 21/10/97. On 11/3/98, the Commissioner dismissed the plaintiff from the Police Force after finding him guilty of the charge. In determining the plaintiff’s guilt and the penalty, the Commissioner took into account an internal investigation report dated 28 January 1998 prepared by Inspector J.R. Waira who is Second-In-Charge of Discipline at Police Headquarters; report by D/Chief Inspector Mr Povis dated 27/10/97; report by Assistant Commissioner T. Kulunga dated 30/10/97; report by S/Sgt. A.D. Waki dated 22/10/97; a further detailed report by S/Sgt. A.D. Waki dated 1/9/97; statement of complaint by the victim Mr. Saing Gogena dated 2/4/97; statement by Const. Amicks Anigura dated 21/10/97; statement by Const. Frank Kwarkuto dated 21/10/97; plaintiff’s statement to police regarding the complaint dated 21/10/97 and the plaintiff’s reply to the charge dated 4/11/97. These documents are annexed to the affidavit of Insp. John R. Waira sworn on 27/5/99. Inspector Waira is the OIC of the Police Discipline Section at the Police Headquarters.

The grounds of review set out in the statement of facts filed in support of application for leave are:

(a) That the first defendant acted ultra vires his powers.
(b) That the first defendant considered irrelevant matters.
(c) That the first defendant failed to consider relevant matters.
(d) That the first defendant conducted his proceedings contrary to the rules of
natural justice.

Pursuant to Order 16 rule 6(1) of the National Court Rules, the plaintiff is confined to these grounds when it comes to raising evidence and submissions in support.

The plaintiff’s basic complaints are set out in paragraph 4 or 5 of his affidavit sworn on 7/4/98. They are:-

“4. I was also unfairly treated because my two members namely, Constable
Anigura and Constable Kwarkuto who actually took the pig meat from the
Mobile Squad “Charlie 13” landcruiser to our vehicle, which I was driving at
the time, have not been disciplined in any way. I who did not know anything
but ate the meat in good faith, thinking that it came from fellow policemen who
are law-abiding and law-enforcement officers so the meat could not possibly be
stolen. The Mobile officers are also still in the Force. I feel it is totally unfair
that I the least guilty, if in fact guilty, was disciplined and dismissed whereas
the others have not been dealt with.
5. I was wrongfully found guilty and therefore, wrongfully dismissed from the
Force. If the statements of my witnesses were considered together with my
response, I would not be found guilty and dismissed. I have never been in
trouble before in my thirty years of...